Biela case could go to jury Wednesday after closing arguments

May 25, 2010

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Defense key points:* The defense team’s DNA expert said the Washoe County crime lab used all of the samples in several key swabs making it impossible to verify its results through retesting.* The expert said the crime lab incorrectly said James Biela was the source for certain DNA swabs when it should have provided statistics instead. * The defense lawyers criticized the crime lab for contamination found in some of its results, including one sample in the Biela case.

TO ATTEND WHAT: Due to limited seating in Judge Robert Perry’s court, officials will run a live video feed of the closing arguments in the James Biela murder trial Wednesday in Judge Janet Berry’s courtroom. WHERE: Washoe District Court, Department 1, third floor. Department 1 is the courtroom nearest the elevators.CAPACITY: Department 1 can accommodate about 50 people.Source: Howard Conyers, court administrator.

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The prosecution called 59 witnesses over nine days to build their case against James Michael Biela. His defense team called one DNA expert who testified Monday afternoon and Tuesday morning before resting its case.

Both sides will present their closing arguments Wednesday, and the seven-woman, five-man jury could begin deliberating by the afternoon.

Biela opted out of testifying, but only because he was advised against it, he said.

“I guess I will not,” Biela replied after Judge Robert Perry read Biela his constitutional rights and asked if he wanted to take the stand.

Perry said he was concerned about Biela’s use of the words “I guess,” saying it suggested doubt.

“I would like to, but I will follow their advice not to do it,” Biela responded, referring to his lawyers.

Biela is charged with five counts involving three victims: the rape and murder of Brianna Denison, the sexual assault of a student in a parking garage in October 2007, and the kidnapping and sexual assault of another student near her apartment in December 2007.

If convicted on the murder charge, the trial will move into a penalty phase in which the prosecution will argue for the death penalty. That phase could run several days.

CRIME LAB CHALLENGED

The defense team’s sole witness was a DNA expert from Arizona who criticized the Washoe County crime lab for using all of the samples as they processed swabs collected in the Denison case and the December 2007 sexual assault.

Roger Vincent Miller of Chromosomal Laboratories in Phoenix, said the consumption of the samples made it impossible to retest the swabs and verify the lab’s results.

Jeffrey Rolands, a former crime lab DNA analyst, testified Friday that he needed to use the entire sample in some cases because the police did not yet have a suspect in the case and he wanted to be sure to get a solid result.

That procedure, Rolands said, fell within the crime lab’s protocol for such cases.

But Miller argued that the lab could have tried to get a result using half the sample, and if unsuccessful, they could have added the rest.

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Miller testified Monday that he found what appeared to be an unknown person’s DNA in one if the samples taken from Denison’s body, but since all of the sample was used, he couldn’t retest to identify it.

Deputy Public Defender Jay Slocum told Miller that a crime lab worker testified previously that it would be unlikely to get results from an empty test tube, and asked if he agreed.

Deputy District Attorney Elliott Sattler asked Miller if he thought the crime lab acted in bad faith when it used the samples, and Miller said, “No.”

But Miller said he thought the lab had other options.

Sattler read from Miller’s report, which said the crime lab’s conclusions appeared to be supported by its testing, “but independent verification is not possible,” and

Miller agreed that was his summary.

QUESTIONING THE SOURCE OF DNA

Miller also defended his statement that crime labs should not say definitively that someone is the source of a DNA profile, as the Washoe County crime lab has done in this case.

He said it was impossible to say that two people in the world don’t have the same DNA, because it’s impossible to test everyone. He said it’s best to use the statistics instead of saying 100 percent.

Sattler challenged Miller’s position by conducting a test in court. He ran two cotton swabs along the inside of his mouth and handed the sticks to Miller. He then asked Miller if could he definitively say Sattler was the source of that DNA after testing both swabs.

Miller said he would not, adding it wasn’t an appropriate test because he knew who the source was. He said his lab’s policy is to give the statistics, but not say 100 percent that someone is a source of some sample.

“We would say it was consistent with your profile and give the statistics, but I would not say it was your source,” Miller said.

Sattler also asked Miller how much he was being paid to testify for the defense.

Miller said his lab is paid $1,800 per day for his work in the trial and he has put in three days so far. He also said the lab is paid hourly rates that range from $450 to $900 per hour, but he said he did not know the total bill for this case so far.